Advanced Copyright Issues on the Internet - Fenwick & West LLP

client or the website, IBill terminated the account permanently. Perfect 10 argued that thispolicy was inadequate because it suspended services for particular websites without terminatingthe webmaster responsible for that material. The court rejected this argument, noting that thefocus of Section 512(i) is on infringing users rather than on content. The policy of disabling ofIBill clients accused of infringing third party copyrights was therefore adequate. 1736Perfect 10 argued that IBill had not reasonably implemented its termination policybecause it had not kept a log of its notifications of infringement. The court held that the DMCAdoes not require an OSP to keep a log of its notifications. Because IBill had kept the actualDMCA notifications it had received, this was sufficient to demonstrate that it adequately trackedits notifications. 1737 The court further held that many of the notifications Perfect 10 had sent toIBill were inadequate to trigger a duty to act on them. Several such notices were emails fromPerfect 10’s counsel that identified several websites run by IBill’s clients that containedallegedly infringing material, but did not identify the URLs of the infringing images nor identifywhich of Perfect 10’s copyrighted images were being infringed. The court held that the failureto identify the URLs or the copyrighted images made the notices inadequate. Another noticeidentified the URL of an infringing image, although not the copyrighted work that it allegedlyinfringed. The court ruled that, although the notice did not comply with all of the requirementsof Section 512(c)(3)(a), the supply of a URL was sufficiently substantial compliance to give riseto a duty to act. 1738 Because IBill had acted on the single sufficient notice by suspending theaccount of the website, the court concluded that IBill had reasonably implemented its repeatinfringer policy. 1739With respect to the Section 512(a) safe harbor, Perfect 10 argued that IBill did not qualifybecause it did not transmit the infringing material at issue, but rather only credit cardinformation. In an important holding, the court read the scope of Section 512(a) veryexpansively to cover IBill based on the language of Section 512(a) that affords immunity for“providing connections for material through a system or network controlled or operated by or forthe service provider.” 1740 The court concluded that IBill was within this language: “IBillprovides a connection to the material on its clients’ websites through a system which it operatesin order to provide its clients with billing services.” 1741 Accordingly, the court granted summaryjudgment to IBill under the Section 512(a) safe harbor. 1742Internet Key. Perfect 10 challenged Internet Key’s compliance with the thresholdrequirements of Section 512(i) based on its termination policy, which read as follows:1736 Id. at 1088-89.1737 Id. at 1089.1738 Id. at 1089-90.1739 Id. at 1090.1740 Id. at 1091.1741 Id. The court rejected Perfect 10’s reliance on the Aimster case, noting that the Aimster case dealt with thetransmission of material, not the provision of a connection to the material. Id. at 1091-92.1742 Id. at 1092.- 378 -